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Board of Adjustment Minutes 01/23/2008
JANUARY 23, 2008

Case #215 & #216 Board of Selectmen Appeal From an Administrative Decision of an assessment of an Impact Fee rendered by the Planning Board Chairman later ratified by the Planning Board on 12/6/07 under Article III Section M. XI.  Impact Fee assessed to Map 10 Lot 9 owned by Brandon & Katrina Giuda & Map 10 Lot 2, Map 9 Lot 32 owned by Frank & Susan Merrill.

Members Present:  Edward Meehan, Chairman; Mark McIntosh; Ben Brown; Richard Millette; David Dobson; David Hartley; Stephen MacCleery, ex-offico.
Voting:  Ed Meehan, Mark McIntosh, Ben Brown, Richard Millette, and David Dobson.

Others Present:  Bradley Towle, Chris Weir, Joanna McIntosh, Stan Brehm, Richard DeBold, Katrina & Brandon Giuda, Walter Sanborn, Gordon Jones, Paul McCully, John Saturley, Lisa Stevens, Jamie Pike, David Kenneally, Linda Booth, Karen Lingner, Thomas Jameson, Paul & Gwen Adams, Frank & Karl Merrill, David Colbert.

It was noted that Steve MacCleery would be stepping down from the BOA and acting as Selectman and that Richard DeBold would be stepping down as Selectman and acting as a PB member.

It was clarified that the BOA felt they were eligible to hear these cases versus the previous cases pertaining to the subdivisions because this case pertains to the Impact Fee Ordinance and not the Subdivision Ordinance.

Mr. Giuda asked to have the same amount of time allotted to him because he & Mr. Merrill are interveners.   Chairman Meehan agreed.

Selectmen David Colbert presented the Selectmen’s case and a timeline of the events.  (On file)  He stated that the BOS is appealing the decision to the BOA because RSA 674:21,V(f) states “Unless otherwise specified in the ordinance, any decision under an impact fee ordinance may be appealed in the same manner provided by statute for appeals from the officer or board making that decision, as set forth in RSA 676:5, 677:2-14 or 677:15, respectively.”  The BOS is appealing the process the applicant took in appealing the impact fee that was assessed to his subdivision.
?       On 11/1/07 the PB granted conditional approval for the Giuda/Merrill subdivisions .  It was noted that there were discrepancies and adjustments needed to the Impact Fee Schedule.
?       11/6/07 BOS office received copy of the NOD sent to both applicants with the corrected impact fee.
?       An e-mail was sent to the PB Chairman from Mr. Giuda stating that the impact fee was incorrect, it wasn’t what was decided on at the meeting.
?       11/14/07 an inter-office memo is sent to BOS noting conditional approval for the Giuda/Merrill project which includes amended Impact Fee Schedule.  On direction of the PB Chairman, the PB Secretary reduces the Impact Fee Schedule.
?       11/19/07 PB has a work session where the request of the impact fee by Mr. Giuda is not brought forward to the board for discussion.
?       11/27/07 BOS meeting directed Mr. DeBold to bring forward the corrected IFS for discussion at the PB meeting on 12/6/07.
?       12/6/07 PB members vote to assess the lower IFS to the Giuda/Merrill project.

If the applicant had a grievance with the impact fee it should have been appealed to the BOS.  The BOS feels that the impact fee assessed on 11/6/07, the higher figure, is the proper one.  The BOA is asked to determine if the action of 11/6/07, by the PB Secretary, was improper because the assessment of a higher impact fee required going back to the PB for another public hearing; and was the e-mail from Mr. Giuda to PB Chairman Mr. Towle on 11/9/07 an appeal.
The BOS feels that no firm figures of impact fees were given at the 11/1/07 PB meeting.  There were corrections that needed to be made during the conditional approval.  The BOS has a problem with the process of the appeal.  The PB acted on something they shouldn’t have.  It should have been appealed to the BOS.

PB Chairman Brad Towle-At the 11/1/07 PB meeting it was discussed at great length about the impact fees.  The final figure came out higher than originally thought.  The applicant reluctantly agreed to the higher fee.  The number of units would be corrected.  This was discussed at the meeting but the minutes don’t reflect that.  Between 11/1/07 & 11/6/07 the fee got refigured in the BOS office by the PB Secretary.  The fees were increased, up to $400,000, which were then passed on to the applicant.  On 11/9/07 an e-mail was received from Mr. Giuda asking that the PB stick with the maximum of $2999.73, which was the amount discussed at the meeting.

BOA Ben Brown commented that the IFS was recalculated and it didn’t need to get reviewed by the PB before being sent to the applicant?

PB Chris Weir stated that at the 11/1/07 meeting, the PB knew there were errors in the formula.  The PB Secretary was going to get in touch with the people who created the formula and then send it on to the applicant.  Brad Towle added that this was the first time the PB has dealt with impact fees this high.  He called the PB Secretary, who explained what happened, and he stated that the PB should go back to the original amount.

BOA David Dobson questioned how you can agree on something that isn’t finalized at a meeting.

Brandon Giuda believes the time period has gone by and the BOS can’t appeal.  At the 11/1/07 PB meeting it was agreed they would adjust the IFS.  He feels the minutes are horribly inefficient and do not reflect the actual events of the meeting.  He stated at the meeting that he wanted the impact fees resolved.  It was settled that evening.  He feels that the PB Secretary and BOS have no authority to go back and refigure the fee schedule.  He and Mr. Merrill didn’t agree with the figure that night but they went with it.  His e-mail of 11/9/07 asked the PB to stick with the figure agreed upon, it was not an appeal.  The discussion at the PB meeting went on for over an hour.  The PB can’t vote on a fictional number.  He didn’t go to the Dec. PB meeting because all this was decided at the Nov. meeting.

BOA Ben Brown said that the PB minutes of 11/1/07 have been approved and state “It was noted that the IFS distributed still needed adjustment and correction.”

PB Tom Jameson added that a lot of the negotiation was based on a certain amount of the impact fee.  He felt that there would be very little change in the amount.

PB Richard DeBold said that there were some details missing from the minutes and that maybe a poll of the PB members present could be taken.  His impression was that the number would be around $2999 plus or minus.  A small adjustment was going to be made.

PB David Kenneally said he understood that the schedule would be set at $349,000.  It was pointed out that there were errors, and adjustments would be made.

PB Secretary Jamie Pike said the $349,000 is just to upgrade the roads.  Calculations were readjusted, 1 per 10,000 v. 1 per 1,000 population.  There was an error with a decimal point.

PB Stan Brehm added that the PB agreed at the Dec. meeting to stay with figures that were discussed at the Nov. meeting.  The units were being adjusted.  The total $ amount would remain the same.  It was unanimous at the Dec. meeting.  He doesn’t feel that Mr. Giuda’s e-mail is an appeal to the PB pertaining to the impact fee.

BOS David Colbert stated the amount was discussed at the meeting but not voted on.  If the applicant wasn’t happy with the final impact fee it should have been appealed to the BOS.

PB Brad Towle stated that he told the PB Secretary that they would have to go back to the original amount, although the minutes don’t reflect that.  Richard DeBold added that the PB staff was not asked to recalculate the formula, but a major error was found.  Chris Weir further stated that no one was instructed to recalculate just to fix the error.  Brad added that you have to go on what the vote was on the night of the meeting.  The error was found on 11/6/07.  Errors were found on 11/1/07 as well and were dealt with by a vote of the PB.

Paul Adams said that the BOA has no jurisdiction.  The impact fees can’t be accessed because this development isn’t part of the CIP.  David Colbert stated that this is a different formula because of cluster housing.  It has been on the books since 2000.

PB Richard DeBold wonders if a methodology needs to be established, was it brought from the PB to the BOS to get approved and adopted.

BOA Ben Brown-The minutes of the meeting state an upper limit and they say they need to be adjusted.  It shouldn’t be a surprise if they go up.

Mr. Giuda-The Dec. vote is null and void.  The vote was made on 11/1/07.  Conditional approval doesn’t mean that things will change.

It was asked if another PH could be held.  The PB Chairman said yes.  Mr. Giuda requested that the BOA make a decision and determine if the BOS appeal is too late and if his e-mail is an appeal to the PB.

Linda Booth feels there is a big problem with the PB if they are going to give impact fee breaks to developers.  If it is good for one, it is good for all.

PB Joanna McIntosh-After the Nov. meeting the PB Secretary refigured the fees.  I feel we knew the figures would be different.  Tom Jameson added that he was a little uncomfortable with the high impact fee and that conditional approval is given when something small needs to be fixed.

The PB minutes are weak and need more detail.  The PB should consider putting a policy together if a 20% change is made to the IFS.
The vote on 12/6/07 should never have happened.  There was no authority to amend the NOD of Nov.
It is unfortunate that it was not clearer in the minutes and that the PB Chairman took it upon himself to go by the original figures.
There is grave concern with the Dec. meeting.  If that decision is overturned, it overturns the amended NOD.
Have to look at fairness and what is right.  The developer felt he had a decision on 11/1/07.  The records are not clear as to what was decided and neither is the PB.  An adjustment was made because a mistake was made.  Isn’t it fair to go back and correct a wrong?  It is the method that got us all here.

Ben Brown moved to grant the appeal of the Board of Selectmen, for both Case #215 & Case #216, and the Notice of Decision dated 11/6/07 and to repeal the amended Notice of Decision, 11/14/07, and to repeal the motion made during the Planning Board meeting of 12/6/07.  Planning Board minutes of 11/1/07 don’t specify an upper limit but they do note that adjustments and corrections needed to be made.  Motion is based on the 4-4 attending PB members and their recollections of the events.  Motion seconded by Mark McIntosh.

It seems a lot of cleaning up needs to be done pertaining to PB procedures.  A fairness issue can be seen, but a mistake was made.

Mark McIntosh – Yes
Edward Meehan – No
Ben Brown – Yes
David Dobson – No
Richard Millette – No

Motion denied 3-2.

Respectfully submitted,

Holly MacCleery, Secretary

Edward Meehan, Chairman

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